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The FAA’s misguided approach to drones, and how to fix it

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Consumer drones offer game-changing technology for a range of activities: everything from farming to photography to search-and-rescue can be done better with the help of camera-equipped, lightweight flying devices.

The U.S. government, however, is no fan of unmanned flight. In recent months, the Federal Aviation Administration has been using old regulations to crack down on a new breed of flying devices, even grounding them in situations where they could prove most useful.

This is the wrong approach. Instead of trying to impose the rules of planes and pilots onto this new world of unmanned aircraft, the government should try to strike a balance between safety and innovation. One way to do it would be to create a simple permit system like the one we use for cars.

The FAA downs the drones

To get an idea of the FAA’s current view on drones, consider the case of Texas EquuSearch, a nonprofit that runs search-and-rescue missions that have located hundreds of missing people (or, in some cases, their bodies). As part of its work, the organization uses five-pound aircraft, constructed of foam and plastic, that can survey rough terrain and replace the work of an estimated 100 volunteers.

Despite the importance of the drones to the searches, however, the FAA ordered the devices to be grounded this year. According to an emergency appeal filed by Texas EquuSearch last month, the FAA has also repeatedly “harassed and interfered” with its members “before, after and during search and rescue activities.”

Meanwhile, media outlets are also upset with the FAA for banning the use of drones for news gathering, and for shutting down drone-photography courses at journalism schools. In response, the New York Times and other organizations last month joined a court case that challenges the FAA’s authority to regulate unmanned aircraft. The media outlets claim, in part, that the ban is too broad and is a violation of the First Amendment.

So how has the FAA responded to the criticism? So far, the agency isn’t giving an inch to those who claim it is reacting too harshly to the emerging consumer drone industry.

In March, for instance, the agency published a “Busting Myths” notice on its website that defended its regulatory powers. More recently, the FAA issued a Q&A (reproduced here) explaining that, for any drone use related to “business purposes,” the flights require not only a certified aircraft but a certified pilot too.

The rules provide little wiggle room. For instance, “business purposes” appears to encompass nearly any use, including search-and-rescue and commercial photography. And so far, the FAA says it has only authorized two devices for commercial use  — and they can only be operated in the Arctic.

Meanwhile, a growing number of industries are asking to use drones. The latest are Hollywood studios, which have asked the FAA for an exemption in order to use drones for movie shots.

Photo by Funky Frog Stock/Shutterstock
Photo by Funky Frog Stock/Shutterstock

Old rules for new times

The FAA’s heavy-handed attitude on the rise of consumer drones is not surprising. The response represents the type of social clash that often arises when a regulator tries to stuff new technologies into old legal frameworks.

In the case of consumer drones, like the one my colleague Signe Brewer flew around San Francisco last year, the FAA appears to believe it faces a binary choice: treat them as toys that fall outside the scope of regulation, or else subject them to the full raft of rules that apply to traditional aircraft — including pilot licenses and certification programs.

So far, the agency has chosen the second option, which has provoked the ongoing legal backlash. The FAA’s predicament is made worse by the fact that it’s on shaky legal ground; as I’ve explained before, the low-altitude airspace (below 700 feet) where most people fly their drones airports is, aside from areas around airports, currently unregulated.

This doesn’t mean that the FAA should simply throw in the towel, especially since most people don’t want the space above our heads to turn into a free-for-all of flying cameras. But the idea of requiring photographers, rescuers or movie-makers to become certified as conventional pilots doesn’t make sense either.


A better way to oversee drones

Airware is a San Francisco start-up that makes hardware and software for hundreds of drone businesses, and is also using its technology to help with anti-poaching initiatives in Africa.

According to CEO Jonathan Downey, the best way to resolve the ongoing legal conflicts involving drones is to designate separate airspaces for manned and unmanned aircraft, including a buffer zone between them. Doing so, he said in a recent phone interview, would permit a more relaxed set of rules for drones.

Specifically, Downey suggested this might involve a permit system where drone owners could obtain a license after passing a test. This might involve a short set of rules — “something you could learn in a weekend” — covering topics like avoiding buildings and maintaining the drone properly. The permits could be awarded by authorized testing agencies similar to FAA-approved flight schools.

Would this work in practice? Brendan Schulman, a drone lawyer who is representing the search-and-rescue company in its fight with the FAA, thinks it might.

“Something that resembles a driver’s test might work. A test that shows you understand airspace, the radio control system and how to keep away from manned aircraft,” he said.

Schulman also pointed to other countries as possible regulatory models. In the U.K., for instance, people operating drones under 2 kilograms simply have to notify the aviation authority of their presence, while Australia is considering a proposal to exempt lightweight drones altogether.

In the U.S., any of these solutions, from exemptions to permits, sound better than the current morass of lawsuits and drones on the ground.

8 Responses to “The FAA’s misguided approach to drones, and how to fix it”

  1. Kevin Morris

    One thing to note is that this controversy is only over the COMMERCIAL use of drones. There are literally tens of thousands of non-commercial/hobbyist drones in the airspace today – operating completely unregulated. You can buy them in toy stores. The FAA is not trying to regulate those.

    What they ARE trying to regulate are people using drones for any commercial purpose. The irony is that the “safety” argument is being used, but amateur operators (who are not part of this discussion) comprise 99+% of drones in the air. The remaining fraction of one percent that would be doing commercial operations are most likely to be the best trained, most professional, and safest operators.

  2. cGraham

    Drones have great potential for benefit and cost savings, as exemplified by their use in SAR, and also great potential for abuse, like most technological innovations. The public needs to decide how to regulate them to maximize their benefits and minimize their misuse.
    The first question to consider is whether the FAA is the right bureaucracy to regulate drones under some certain size (let’s say 6 feet in any dimension). FAA’s mandate, traditional attitudes and existing regulations may be entirely unsuitable for dealing with these new vehicles, which are quite unlike familiar aircraft in their operational characteristics, size and uses. Draconian, inflexible regulation is certainly not the right approach. A new agency lacking the baggage of the FAA may be required, especially in view of the potentially very large number of small drones that are likely to come into use (and play).
    New, beneficial uses are continually being found for small drones. So there is every reason to make the technology accessible and free of more than necessary, minimal and flexible regulation in order to maximize benefit and profit from this emerging technology.
    One example I will pick because I am a little familiar with it is filmmaking: drones open all kinds of new, inexpensive possibilities to amateur, independent and commercial filmmakers that can also benefit many secondary fields, such as map making, surveying and SAR: but only commercial filmmakers might have the means to deal with a leaden bureaucracy.
    A drone presents a physical risk between the level of a bicycle and a motorcycle (but no passengers to protect), and new privacy risks. We lack experience with vehicles that can operate in three dimensions, operable remotely by members of the public with little formal training, and so have difficulty evaluating appropriate safeguards.
    Some regulations will be required to deal with training, access, privacy rights and legitimate use. Use on private land which one owns or has permission to use should be unquestioned. It is there that a new user might gain training, without need of professional instruction. Use on spacious public lands like BLM and national forests might go relatively unregulated too, with just necessary safety and ecological protection requirements such as hunters and recreational vehicle users must obey. An examination along the lines of that required for a motorcycle license (knowledge of applicable rules and operational competency) might reasonably be required for operation of larger units, or for public areas. A permit might be appropriate for use in various legal jurisdictions.
    Prohibiting dangerous operation of drones and their use in illegal activities goes without saying. They should not be allowed to fly closer than a prescribed distance from persons, or enter buildings except under very specific circumstances. Special rules will be needed for public services and operations, such as surveying, checking power lines, SAR, law enforcement and other operations where it is customary for officials to enter property without explicit permission. Entry into property that requires a warrant should require one for drone intrusion as well.
    New laws might be required to protect privacy. Currently, it is legal to view and photograph almost anything and anyone by conventional means from a public place, or from a private place to which one has legal access, so while trespass law can afford some privacy, it will not be absolute (the only difference from vehicular trespass is lack of contact with land). The problem arises because of ambiguity about the ownership of airspace. Operation below (let’s say) 1000’ directly above private property without permission should be considered trespass: therefore obtaining images would be illegal. Of course, exceptions can be made by the property owner, for example to receive deliveries by drone.

  3. Coolfire

    All above written by non-pilots I assume and certainly by no-one familiar with the necessity of anyone piloting a private aircraft flying direct of constantly looking in all directions for any other aircraft to minimize a mid-air collision. “Understanding airspace” is no protection whatsoever when the “pilot,” i.e., someone on the ground, cannot possibly see 360 degrees around the drone nor above. The above writings are in ignorance of the reality of airspace safety..

  4. Anono Mouser

    A lot of the pilot license training is learning what the various airspace restrictions are, and drone pilots need to know this too. A drone could bring down a small plane if it’s in the wrong place, so FAA has a right to be concerned. But other than that FAA should just create no-drone zones where needed instead of grounding everything.

  5. Reuben Lowing

    This is getting to mirror Obamacare, exemptions for Hollywood, for farming and only authorizing overpriced systems from companies in bed with the goverment. Under RC rules outlined in 1981, on private property, with proper written authorization under 55lbs and below 400′ and in some areas up to 800′ with insurance you are good to go. The problem comes in when you are flying over public private property without authorization but there are no restriction for manned aircraft even with someone taking pictures or gathering imagery. Hence the double standard. There are commercial operations going on right now over public property with authorization. Municipalities indemnify the UAS pilot for specific operations and imagery and data gathered. look at all video was authorized by the city, parks service or port. I would recommend an attorney letter for each operation just incase the FAA tries to harass you.

  6. Thom Reece

    Drones should be highly regulated and only allowed based on strict restrictions of use and even stronger oversight. These are not toys … they are capable of very sinister and intrusive exploitation… even murder.

    Let’s slow down, take our time and consider ‘all’ the implications of their use. The FAA is correct. Do you really want a bloody drone hovering over your house? I don’t think so.

    The advocates wringing their hands are mostly stake holders or profiteers… let’s get it right the first time instead of pay a heavy price in safety and freedom later. We’ve seen enough of that thinking.

  7. > “Instead of trying to impose the rules of planes and pilots onto this new world of unmanned aircraft, the government should try to strike a balance between safety and innovation.” <

    In a word, why? This article says several times that the FAA is being "heavy-handed" – but the writer never says why he thinks it is too restrictive..

    Maybe the FAA _should_ take a slow, cautious approach. It sounds to me as though the only people who think the FAA aren't moving fast enough are the folks trying to make a quick buck with drones.